Sanders v. Indiana State of et al

Filing 50

OPINION AND ORDER STRIKING 32 AMENDED PRO SE COMPLAINT filed by George F Sanders; 43 AMENDED COMPLAINT with Jury Demand filed by George F Sanders; 46 AMENDED COMPLAINT "Tort Claim for Property Loss and Damages" filed by George F Sande rs; 49 SUPPLEMENT to 48 MOTION to Correct Errors and "Special Findings" re 45 Opinion and Order by Plaintiff George F Sanders; DENYING 47 MOTION for Preliminary Injunction by Plaintiff George F Sanders; 48 MOTION to Correct Errors and "Special Findings" re 45 Opinion and Order by Plaintiff George F Sanders. Clerk DIRECTED to forward to Plaintiff a blank Habeas Corpus Petition. Clerk DIRECTED to place this case number on blank 42:1983 Prisoner Complaint form and fo rward it to Plaintiff. Plaintiff GRANTED until 8/30/2011 to file an Amended Complaint on that form. Plaintiff CAUTIONED if he does not respond by deadline, the case will be dismissed without further notice. Signed by Judge Theresa L Springmann on 7/18/11. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
GEORGE F. SANDERS,
Plaintiff,
v.
STATE OF INDIANA, et al.,
Defendants.

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CAUSE NO.: 1:10-CV-136-TLS

OPINION AND ORDER
George F. Sanders, a prisoner who is proceeding pro se in this matter, filed a document
captioned, “Tort Claim for Property Loss and Damages” [ECF No. 46]. Although the Clerk
docketed that filing as an amended complaint, given the procedural history of this case the Court
will not treat it as an amended complaint. First, the Plaintiff has not included any of his prior
claims in this filing. Rather, it appears that he is presenting only new claims. Because it seems
improbable that he has abandoned all of his prior claims, the Court will not accept this filing as an
amended complaint.
Furthermore, in its June 30, 2011, Opinion and Order, the Court reviewed two previous
amended complaints. After discussing his various claims, the Court granted the Plaintiff leave to
file a single “amended complaint stating only claims against Defendants Hoover, Tobin, and
Barnes for ordering other guards to attack the Plaintiff and for denying him access to prescribed
medication.” (ECF No. 45 at 7.) Given that the Plaintiff’s “Tort Claim” was filed only days after
the Court issued its June 30 Opinion and Order, it does not appear that the Plaintiff’s filing is
responsive to the June 30 Opinion and Order. Therefore, the Court will strike the Plaintiff’s “Tort
Claim” filing. To avoid confusion, the Court will also strike the Plaintiff’s two prior amended
complaints. The Court will grant the Plaintiff an opportunity to file a single amended complaint,

that includes all of the claims he is attempting to present in this case. The Plaintiff is reminded that
his amended complaint should include “a short and plain statement of the claim showing that [he]
is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Additionally, Northern District of Indiana Local
Rule 15.1 provides that:
A party who moves to amend a pleading shall attach the original of the amendment
to the motion. Any amendment to a pleading, whether filed as a matter of course or
upon a motion to amend, must, except by leave of court, reproduce the entire
pleading as amended, and may not incorporate any prior pleading by reference. A
failure to comply with this rule is not grounds for denial of the motion.
The Plaintiff also filed a document captioned “Plaintiff’s Motion for a Preliminary
Injunction” [ECF No. 47]. Because the Plaintiff does not have a pending complaint, there are no
claims upon which such relief may be granted. Thus, the motion for a preliminary injunction must
be denied.
On July 13, the Plaintiff filed a document captioned “Supplement to Reversal of Courts
June 30, 2011, Decision” [ECF No. 49]. This Supplement presents the Plaintiff’s argument that
new Indiana caselaw on judicial immunity requires this Court to reconsider its June 30 Opinion and
Order. The Plaintiff discusses a case involving a judge threatening individuals with a loaded
firearm, but that case is not analogous to the rulings during trial that the Plaintiff attempted to raise
in his last amended complaint. The Court will strike this Supplement and cautions the Plaintiff to
file only an amended complaint stating claims against Defendants Hoover, Tobin, and Barnes for
ordering other guards to attack the Plaintiff and for denying him access to prescribed medication.
The Plaintiff also filed a document captioned “Motion to Correct Errors and ‘Special
Findings’” [ECF No. 48]. The Plaintiff is not seeking to correct any error in this proceeding.
Rather, he is attempting to have this Court correct errors that he believes were made during his
state criminal trial. “[H]abeas corpus is the exclusive remedy for a state prisoner who challenges

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the fact or duration of his confinement and seeks immediate or speedier release . . . .” Heck v.
Humphrey, 512 U.S. 477, 481 (1994). This case is a civil rights lawsuit, not a habeas corpus case.
Moreover, this proceeding may not be converted into a habeas corpus case. See Moore v.
Pemberton, 110 F.3d 22 (7th Cir. 1997). The Court will deny the Motion. Although the court
cannot give legal advice and expresses no opinion as to the wisdom of filing a habeas corpus
petition to challenge the Plaintiff’s conviction, the Clerk will be directed to send the Plaintiff a
habeas corpus petition so that he may file it if he deems such a filing appropriate.
For the foregoing reasons, the Court:
(1) STRIKES the pleading documents [ECF Nos. 32, 43, and 46];
(2) STRIKES the Supplement [ECF No. 49];
(3) DENIES the Motion for Preliminary Injunction [ECF No. 47];
(4) DENIES the Motion to Correct Error [ECF No. 48];
(5) DIRECTS the Clerk to send the Plaintiff a blank habeas corpus petition;
(6) DIRECTS the Clerk to place this cause number on a blank Prisoner Complaint 42
U.S.C. § 1983 form and send it to the Plaintiff;
(7) GRANTS the Plaintiff up to and including August 30, 2011, to file an amended
complaint on that form; and
(8) CAUTIONS the Plaintiff that if he does not respond by that date, this case will be
dismissed without further notice.
SO ORDERED on July 18, 2011.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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